Train manufacturer Talgo filed a “Default of Contract” suit against Governor Scott Walker and Wisconsin DOT Secretary Mark Gottlieb in Dane County Circuit Court today. Court documents filed today show that the Washington-based train manufacturer notified the state on April 4, 2012 that the “trainsets” were ready for required service testing to be conducted by WisDOT.

The state has attempted to claim that Talgo is responsible for testing, but the contract makes clear that WisDOT bears that responsibility.

The trainsets in question were not ordered for the controversial rail expansion to Madison. These trains are for use on the highly traveled Milwaukee to Chicago “Hiawatha” line. Coming on the heels of the WEDC/HUD block grant fiasco, DOT Secretary Gottlieb quickly issued a statement on November 5 to Badger Democracy, in full damage control mode:

“The Department of Transportation participated in a formal mediation process with Talgo just last week in a good faith effort to resolve disputes related to the delivery of completed trainsets. We are disappointed that process was not successful.

Talgo has failed to complete or test the trainsets and they do not meet even basic federal standards, such as those required under the Americans with Disabilities Act (ADA).

The department will defend against this action and continue to act in the best interests of Wisconsin taxpayers.” (emphasis added)

Badger Democracy forwarded Secretary Gottlieb’s response to Lester Pines, Attorney for Talgo. In an interview, Pines offered the following response:

1. As stated in the lawsuit filing, the State of Wisconsin failed to make a $4.5 million contract payment to Talgo, as a means to attempt to force Talgo into conducting “pre-revenue” testing of the trains. Per the contract, this “pre-revenue” testing is the state’s responsibility. Contract excerpt below:

All parties acknowledge and accept that 49 CFR 238.111 provides that the Operator (or railroad, as the case may be) not the Contractor is responsible for performing a pre-revenue service acceptance testing plan. Contractor will diligently work with Department and such Operator to ensure that the Operator’s pre-revenue service acceptance testing plan is efficiently implemented.

2. The state is alleging in the statement that the trainsets do not meet ADA accessibility requirements. This is not true. The trains have been warranted by Talgo to meet every FRA and ADA standard. One minor deficiency has been corrected by a simple part replacement.

3. The state has had an escape clause in the contract which it could have used at any time. It did not. The state could also have declared Talgo in breach of contract at any time for legitimate reasons. It did not.

4. The state of Wisconsin put up a $50 million capital bond issue to pay for the trains. If the state is found in breach of contract, Talgo gets their trains back, and the state no longer will own the capital for which the bond issue was made. The state would be required to repay the $50 million – out of General Program Revenue.

A Legislative Fiscal Bureau March 14, 2012 memo to Robin Vos and Alberta Darling’s Joint Committee on Finance (JCF) confirm many of Talgo’s assertions. The memo also gave legislators plenty of advance notice on this issue, and made specific recommendations (emphasis added):

The state purchased two passenger car train sets in 2009 from Talgo, a Spanish train manufacturer.

A total of $68.9 million in passenger rail development bonds has been approved for the purchase of the rail cars ($48.5 million), as well as other costs related to construction management, purchase of maintenance equipment, and a temporary maintenance facility.

The train sets are now nearing completion, and are scheduled to be delivered to the state for initial testing in mid-March. Following testing, the cars would be ready for use on the Milwaukee to Chicago service, likely in late 2012.

Under that agreement, the state is responsible for providing a facility for the maintenance and for making payments to Talgo for
ongoing maintenance costs. [In anticipation of the completion of the Talgo cars, 2011 Act 32 provided $4,450,000 SEG in 2011-12 and $6,700,000 SEG in 2012-13 in the Department’s passenger rail service appropriation for start-up maintenance costs.]

According to the LFB memo, maintenance costs were an issue of significance. Alternative solutions were offered, including a renegotiation of the maintenance agreement:

ALTERNATIVES

1. Approve the Department’s request for the approval of $2,500,000 in passenger rail development bonding for final design engineering for a permanent maintenance facility for the
State’s passenger rail cars.

2. Deny the request.

3. Deny the request and direct the Department to reimburse any expenditures for the maintenance facility preliminary engineering that were made with bonds from the Department’s SEG appropriation for passenger rail service, to the extent that unencumbered funds are available in that appropriation.

4. Deny the request for additional funding and direct the Department to attempt to renegotiate the maintenance agreement with Talgo to reduce ongoing maintenance costs and, if feasible, the cost of the permanent maintenance facility. Direct the Department, in any subsequent request for funding for maintenance-related services, to report to the Committee on
the status of these negotiations.

Walker, Vos, and Darling all knew exactly what this contract entailed. They wanted to kill any new rail development as payback to their transportation construction political cronies, so they did nothing – even though it would cost taxpayers millions above and beyond the cost of honoring the contract. Vos and Darling were very vocal about how they were “saving taxpayers money” in a May 2012 edition of the Conservative-Digest.

Unfortunately, they failed to tell the whole story about the Talgo contract, and the specific issues surrounding the inevitable trainset replacement costs. You can read the entire LFB memo linked above. The LFB estimates do not include extra costs associated with continuing to use Amtrak maintenance – so the Vos/Darling article is conveniently leaving out key details. The last few lines of their joint article are the most important:

Luckily, the state has options. According to
the Legislative Fiscal Bureau, if no funds weregiven for the Talgo maintenance facility, the“agreement can be terminated by either party.”
So that’s where we are now.

Wisconsin taxpayers were taken for a ride by
Doyle and the Democrats. We’re proud to say
that the ride is coming to an end.

Not quite Governor Walker, Representative Vos, and Senator Darling. When Talgo wins this lawsuit, Wisconsin taxpayers will be the ones paying back the $50 million in revenue to replace the bond issue – as you will have lost the capital purchased by those bonds.

And the trains – they will still have to be replaced in just a few short years anyway. In essence, we will end up paying for them twice. Though, after defaulting on the Talgo contract, will anyone do business with Wisconsin? Maybe we’ll be able to ride Chinese trains from Milwaukee to Chicago.